Citation Nr: 0913288
Decision Date: 04/09/09 Archive Date: 04/21/09
DOCKET NO. 08-10 577 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to service connection for a right foot disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
M. Katz, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1950 to August
1953.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2007 rating decision by the
Department of Veterans Affairs (VA) Regional Office in
Roanoke, Virginia (RO).
A motion to advance this case on the Board's docket was
granted by the Board in March 2009, for good cause. 38
U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2008).
FINDING OF FACT
The evidence of record demonstrates that a right foot
disorder is not related to active military service.
CONCLUSION OF LAW
A right foot disorder was not incurred in or aggravated by
military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107
(West 2002); 38 C.F.R. § 3.303 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
With respect to the Veteran's claim, VA has met all statutory
and regulatory notice and duty to assist provisions. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326 (2008). Prior to the initial adjudication of the
Veteran's claim, a May 2007 letter satisfied the duty to
notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). Although the letter did not notify the Veteran of
the assignment of effective dates or disability evaluations,
any notice error is harmless because the claim is being
denied, and thus no rating or effective date will be assigned
with respect to the claim. See Dingess/Hartman v. Nicholson,
19 Vet. App. 473, 490 (2006); Sanders v. Nicholson, 487 F.3d
881, 889 (Fed. Cir. 2007) (holding that although notice
errors are presumed prejudicial, reversal is not required if
VA can demonstrate that the error did not affect the
essential fairness of the adjudication). Further, the
purpose behind the notice requirement has been satisfied
because the Veteran has been afforded a meaningful
opportunity to participate effectively in the processing of
his claims, to include the opportunity to present pertinent
evidence. Sanders, 487 F.3d at 889; Simmons v. Nicholson,
487 F.3d 892, 896 (Fed. Cir. 2007) (noting that notice
deficiencies are prejudicial unless VA shows that the purpose
of the notice was not frustrated).
The Veteran's service treatment records, VA medical treatment
records, and VA medical examinations and opinions have been
obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Although
the Veteran reported that he underwent right foot surgery in
approximately 1954, the Veteran testified that the doctor who
performed the surgery is deceased and that his records are no
longer available. During his February 2009 hearing before
the Board, the Veteran reported that he received disability
benefits from the Social Security Administration (SSA) for a
heart disorder. The SSA records are not of file. However,
the duty to assist only extends to obtaining SSA records
where they are relevant to the issue under consideration.
Murinscak v. Derwinski, 2 Vet. App. 363, 370 (1992). Because
the Veteran stated that he is receiving SSA disability
benefits for a heart disorder, and not a right foot disorder,
the Board finds that the SSA records are not relevant to the
issue being decided herein. Accordingly, there is no
prejudice to the Veteran in not obtaining such records.
There is no indication in the record that additional evidence
relevant to the issue decided herein is available and not
part of the claims file. See Pelegrini v. Principi, 18 Vet.
App. 112 (2004). As there is no indication that any failure
on the part of VA to provide additional notice or assistance
reasonably affects the outcome of this case, the Board finds
that any such failure is harmless. See Mayfield v.
Nicholson, 20 Vet. App. 537, 542-43 (2006); see also
Dingess/Hartman, 19 Vet. App. 473.
Service connection may be granted for disability due to a
disease or injury which was incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303. In addition, service connection may be granted for
any disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
In order to establish service connection for a claimed
disorder, the following must be shown: (1) medical evidence
of a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed in-service disease or injury
and the current disability. Hickson v. West, 12 Vet. App.
247, 253 (1999) ; see also Pond v. West, 12 Vet App. 341, 346
(1999).
The Veteran claims entitlement to service connection for a
right foot disorder. He contends that he developed a callus
on his right foot during service which was diagnosed as a
wart. He stated that he had the callus removed during
service, but that it kept coming back. The Veteran also
reported that he had an operation on his right metatarsal
shortly after service discharge, but that the doctor who
performed the surgery was deceased, and so no treatment
records were available. He stated that he believes that his
current right foot disorder is related to the right foot
problems that he had during service.
The Veteran's service treatment records reveal treatment for
a left foot blister, Athlete's foot, a plantar wart on the
left foot, a metatarsal callus, and a mild corn sole of the
left foot. However, the Veteran's service treatment records
do not indicate that he had any calluses or warts on his
right foot. August 1950 treatment records reveal the
Veteran's complaints of sore feet and a blister on the
transverse arch of the left foot. An August 1951 treatment
record reveals a diagnosis of a plantar wart on the left
foot. An August 1952 treatment record notes a metatarsal
callus, but does not reveal which foot the callus was on.
October and November 1952 treatment records notes that the
metatarsal callus returned and that a plantar wart was
trimmed. A March 1953 record reveals that a plantar wart
recurred and that the callus was trimmed. There was no
definite evidence of recurrence. A July 1953 treatment note
indicates that the Veteran had a mild corn on the sole of his
left foot. The Veteran's August 1953 separation examination
revealed his feet to be normal.
VA treatment records from August 2001 and November 2001
reveal the Veteran complained of right foot pain. An August
2001 treatment record indicates that the Veteran reported
that he underwent right foot surgery in 1955, and that he had
no problems with his right foot until two months previous to
the examination. He noted burning pain in the plantar
surface of his right foot. Examination of the right foot
showed evidence of an osteotomy of the right third metatarsal
There was some evidence of a fungus to the great nail bed;
otherwise, there were no neurovascular deficits, good
sensation, good pulses, and palpable dorsalis pedis and
posterior tibial pulses. There was no evidence of
neurological deficits other than hypersensitivity involving
the plantar surface of the mid shaft third metatarsal distal
into the metacarpal phalangeal joint heads. There was no
evidence of balancing or discoloration of the foot on dorsum
or plantar surface. There was a well healed scar to the
dorsum of the foot. The diagnoses were traumatic arthritis
of the right foot, status post surgery in 1955;
metatarsalgia; and early plantar fasciitis to the right foot.
A November 2001 treatment record reflects the Veteran's
continued complaints of a burning sensation in his feet with
a painful third metatarsal and arch pain in the right foot.
Examination showed limited range of motion due to arthritic
changes as well as an old fracture of the third metatarsal.
Hair was present, dorsalis pedis pulses were palpable, the
skin temperature was warm, and the nails were becoming
thickened, yellow, and crumbly. There was limited range of
motion of the mid foot with a burning sensation in the
forefoot which the physician noted may be secondary to the
Veteran's lower back problems or his diabetes. The diagnoses
were metatarsalgia, secondary to arthritis and onychomycosis.
In October 2007, the Veteran underwent a VA examination. The
Veteran complained of right foot pain, weakness, stiffness,
fatigability, and lack of endurance. He denied swelling,
heat, and redness. He reported increased pain on flare-up
and noted that he used shoe inserts. He also reported that
he could only stand for about 10 minutes at a time and that
he could only walk one block before he had to stop due to
right foot pain. Physical examination revealed a bunion of
the right first metacarpal phalangeal joint on the right
foot. The Veteran limped on his right leg. He had mild pes
planus with normal pulses and reflexes. Hair growth was
decreased, warmth was normal, and there was a scar noted on
the top of the right foot which was unsightly but not tender.
There was a slight defect on top of the middle metatarsal
that was tender. An x-rays of the right foot showed wire
sutres in the right foot over the third metatarsal. A bony
deformity was present from either surgery or healing
fracture. A calcaneal spur and pes planus were present. An
early hallux valgus deformity was seen at the first
metacarpal phalangeal joint. The diagnoses were status post
wart with surgical removal of bony prominence; x-ray evidence
of third metatarsal bony deformity from previous surgery;
calcanceal spur bilaterally; mild pes planus; and bilateral
hallux valgus involving the first metacarpal phalangeal
joint.
In November 2008, the Veteran underwent another VA
examination. The Veteran complained of right foot pain,
weakness, stiffness, fatigability, and lack of endurance. He
denied swelling, heat, and redness. He noted that standing
and walking made his right foot pain worse and that rest and
propping his foot made it better. He reported that he had a
right foot callus during service and that he had right foot
surgery in 1953 where a piece of the third metatarsal bone of
his right foot was removed. He denied any right foot
treatment since 1953. Physical examination revealed the
Veteran to be limping on his right foot. There was a scar
over the third metatarsal bone measuring seven centimeters
(cm.) in length and one cm. in width. The scar was lighter
in color than the surrounding skin and was tender. Physical
examination also showed that the tip of the third toe
overlapped the end of the fourth toe. The Veteran had a
bunion of the right great toe that deviated the right great
toe, laterally, at 20 degrees. He was able to move all of
the toes on his right foot and he had mild right foot pes
planus. The skin of the right foot was normal except for
decreased hair growth. Pulses and reflexes were normal. X-
rays of the right foot showed post-surgical changes at the
third metatarsal mid shaft, which was foreshortened. There
were degenerative changes of the first metacarpal phalangeal
joint and metatarsal-sesamoid articulation. There was hallux
valgus of the first metacarpal phalangeal joint and minimal
degenerative changes of the mid foot, first interphalangeal
and second metatarsophalangeal joint. The diagnoses were
"status post callus (wart?)" with surgical removal of
portion of third metatarsal foreshortening of that bone,
confirmed by x-rays of the right foot; well healed surgical
scar; hallux valgus involving the first metacarpal phalangeal
joint; and mild pes planus. After a thorough review and
discussion of the evidence in the Veteran's claims file, the
VA examiner concluded that "it is more likely than not that
the veteran's present right foot problems are not related in
anyway [sic] to his active duty military service-confirmed by
this examiner's extensive detailed review of his active duty
medical records and all the other records noted in his C file
folder." The VA examiner explained that there was no
evidence in the Veteran's service treatment records of a
right foot callus or wart, and the only finding in the
service treatment records of a callus or wart involved the
left foot. In addition, the VA examiner relied on the fact
that the Veteran's separation examination revealed his feet
to be normal.
The Board finds that the evidence of record does not support
a finding of service connection for a right foot disorder. A
current diagnosis of a right foot disorder is of record.
Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997)
(holding that the existence of a current disability is the
cornerstone of a claim for VA disability compensation).
Although there are various references to treatment for a
plantar wart of the left foot, a metatarsal callus, and a
mild corn on the sole of the left foot in the Veteran's
service treatment records, the treatment records do not show
a right foot disorder, to include a callus or wart on the
right foot. Hickson, 12 Vet. App. at 253 (holding that
service connection requires medical, or in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury). Moreover, the other
evidence of record does not relate any current right foot
disorder to active service. Hickson, 12 Vet. App. at 253
(holding that service connection requires medical evidence of
a nexus between the claimed inservice disease or injury and
the current disability). In a November 2008 opinion, the VA
examiner concluded that "it is more likely than not that the
veteran's present right foot problems are not related in
anyway [sic] to his active duty military service-confirmed by
this examiner's extensive detailed review of his active duty
medical records and all the other records noted in his C file
folder." Further, in a November 2001 treatment record, the
Veteran's physician noted that the Veteran's right foot
disorder may be secondary to his low back problems or his
diabetes. In addition, although the Veteran testified that
he underwent right foot surgery in 1955, there is no further
evidence of record of any postservice complaints or diagnoses
of a right foot disorder until 2001, over 48 years after
service discharge. Mense v. Derwinski, 1 Vet. App. 354, 356
(1991) (holding that VA did not err in denying service
connection when the veteran failed to provide evidence which
demonstrated continuity of symptomatology, and failed to
account for the lengthy time period for which there is no
clinical documentation of disorder).
The Board acknowledges that the Veteran can provide competent
evidence about what he experienced; for example, his
statements are competent evidence as to what symptoms he
experienced during service. See, e.g., Layno v. Brown, 6
Vet. App. 465 (1994). However, the Veteran's statements that
his current right foot disorder is related to active duty
service are not competent evidence to establish a medical
nexus between his current disorder and service. Espiritu v.
Derwinski, 2 Vet. App. 492, 495 (1992) (holding that lay
testimony is competent to establish pain or symptoms, but not
establish a medical opinion). Absent any medical evidence
that that the Veteran's current right foot disorder is
related to active service, service connection is not
warranted. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)
(noting that the question of whether a diagnosed disability
is etiologically related to active service requires competent
medical evidence).
As there is no medical evidence that the Veteran's current
right foot disorder is related to service, service connection
for a right foot disorder is not warranted. In reaching this
decision the Board considered the doctrine of reasonable
doubt, however, as the preponderance of the evidence is
against the Veteran's claim, the doctrine is not for
application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for a right foot disorder is denied.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs